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Quote:Bush installs Pickering on appeals court, bypassing Democrats who had blocked him

JESSE J. HOLLAND, Associated Press Writer Friday, January 16, 2004

(01-16) 20:06 PST WASHINGTON (AP) --

In an election-year slap at filibustering Democrats, President Bush sidestepped Congress on Friday and installed Mississippi judge Charles Pickering to the federal appeals court after a two-year battle filled with racial, religious and regional argument.

Bush elevated Pickering by recess appointment, simply putting him in office while Congress was out of session. Such appointments, bypassing confirmation, are valid until the next Congress takes office, in this case in January 2005.

Bush's action will re-ignite the battle between Republicans and Democrats over the direction of the federal courts, a fight already sure to be intense this year because of the presidential election.

If not confirmed by the Senate before the end of the year, Pickering would probably retire, supporters suggested.

Pickering, a 66-year-old federal trial judge whom Bush nominated for a seat on the 5th U.S. Circuit Court of Appeals in New Orleans, has been waiting for two years for confirmation. But Democrats have repeatedly blocked Republican efforts to bring the nomination to a vote in the Senate.

"I'm grateful to the president for his continued confidence and support," Pickering told The Associated Press from his home in Mississippi. "I look forward to serving on the 5th Circuit."

He took the oath of office Friday night at the U.S. District Courthouse in Jackson, Miss.

Democrats have accused Pickering of supporting segregation as a young man, and promoting anti-abortion and anti-voting rights views as a state lawmaker.

Bush said Pickering would have been confirmed if his nomination had been brought to a vote. But a minority of Democratic senators has been using unprecedented obstructionist tactics to prevent him and other qualified individuals from receiving up-or-down votes.

He said the Senate should "stop playing politics with the American judicial system."

The Democrats can be expected to use the appointment to try and paint Bush as insensitive to minorities during the election campaign.

"The president's recess appointment of this anti-civil rights judge the day after laying a wreath on the grave of Martin Luther King is an insult to Dr. King, an insult to every African-American, and an insult to all Americans who share Dr. King's great goals," said Sen. Edward Kennedy, D-Mass. "It serves only to emphasize again this administration's shameful opposition to civil rights."

Republicans in turn have accused Democrats of being religiously biased against Bush's anti-abortion nominees. They also have accused the Democrats of being biased against Southerners.

Pickering has strongly denied allegations of racial insensitivity.

"For 25 years I have strongly advocated that African-Americans and whites should sit down and talk in a positive and constructive manner to try to promote better understanding. This I've done," Pickering said after a meeting with the Mississippi Black Caucus last year.

The Republicans acknowledged Friday that Bush's action would make it harder to get Pickering and perhaps other judicial nominees through the Senate, which has 51 Republicans, 48 Democrats and one independent. But "it's hard to know how it could be worse than it is now," said Sen. John Cornyn, R-Texas, a member of the Senate Judiciary Committee.

Pickering was a better choice than the other blocked nominees for a recess appointment because of his age, said Sen. Jon Kyl, R-Ariz. "Judge Pickering has a long and distinguished career," Kyl said. Serving on the "5th Circuit would be a wonderful capstone for his career if he is not made permanent."

Sen. Trent Lott, R-Miss., said he would continue to try to win a permanent position for the judge. "The unwavering determination that Judge Pickering has displayed in the face of these unfair and now discredited attacks shows all the more what an outstanding individual he is," Lott said.

The 5th Circuit handles appeals from Mississippi, Texas and Louisiana, and the federal judges on that circuit have been trailblazers on desegregation and voting rights.

Democrats have used the threat of a filibuster to block six U.S. Appeals Court nominees this congressional term: Pickering, Alabama Attorney General William Pryor, Texas judge Priscilla Owen, Hispanic lawyer Miguel Estrada and California judges Carolyn Kuhl and Janice Rogers Brown. Estrada withdrew his nomination in September.

Pickering was the first of Bush's nominees to be blocked by the Democrats, while they controlled the Senate in 2001, and his chances of winning approval waned when then-Majority Leader Lott stepped down from his leadership position over racially insensitive statements about Sen. Strom Thurmond of South Carolina.

"I would be remiss if I did not express my gratitude to Senators Lott and Cochran for their friendship and for their strong and continuous support, and to my son Chip, who did so much to defend my record," Pickering said Friday. "Most of all I am grateful for the outpouring of support and prayers from so many in Mississippi and around the country. I will serve in a manner to justify this confidence and support."

More than 300 judges have reached federal courts through presidential recess appointments since 1789. Some of the more famous cases include Earl Warren's appointment to be chief justice of the Supreme Court and Thurgood Marshall's appointment to the 2nd District Court of Appeals in New York.

criticized the ?one-person, one-vote? principle recognized by the Supreme Court.

suggested that large deviations from equality in drawing legislative district lines, which the Supreme Court has held presumptively unconstitutional, were ?relatively minor? and ?de minimis.?

criticized or sought to limit important remedies provided by the Voting Rights Act.

repeatedly inserted into his rulings, in cases involving claims of employment discrimination, severe criticisms of civil rights plaintiffs and the use of civil rights laws to address alleged discrimination.

demonstrated a propensity to make it harder for some people to obtain access to justice, especially less powerful litigants, such as people raising civil rights or liberties claims.

has been reversed 15 times by the 5th Circuit for ignoring or violating ?well-settled principles of law? ? 11 of those 15 in cases involving constitutional, civil rights, criminal procedure, or labor issues; in contrast, another Bush nominee who was confirmed to the 5th Circuit, Edith Brown Clement, was reversed only once during a slightly shorter tenure as a district court judge.

engaged in unethical conduct in an effort to reduce the sentence for a defendant convicted for [size=big]burning a cross [/size] on the lawn of an interracial family and by soliciting letters of support for his confirmation from attorneys who practiced before him. [WTF!!!]

As a state senator, Charles Pickering:

co-sponsored a Mississippi Senate resolution calling on Congress to repeal Section 5 of the Voting Rights Act (providing federal oversight over jurisdictions with a history of discrimination in voting) or to apply it to all states regardless of their discrimination history, widely seen as an effort to gut the Act.

supported ?open primary? legislation that was blocked by the Justice Department over concerns about discrimination against black voters.

supported a resolution calling for a constitutional convention to propose an amendment to ban abortion.

Hundreds of organizations, individuals and elected officials have announced their opposition to Pickering?s nomination:

African-American organizations and leaders in Mississippi, including every local chapter and the state chapter of the NAACP, the Legislative Black Caucus, the Magnolia Bar Association, the Southern Christian Leadership Conference, and the Mississippi Worker?s Center for Human Rights, and more.

National legal and civil rights organizations, including the Congressional Black Caucus, the NAACP, the Leadership Conference on Civil Rights, the Alliance for Justice, the Human Rights Campaign, the Mexican American Legal Defense and Educational Fund, the Rainbow/PUSH Coalition, the National Bar Association and more.

Local and national women?s rights groups, including the American Association of University Women, the National Women?s Law Center, the National Partnership for Women and Families, NARAL Pro-Choice America and the National Womens Political Caucus, and more.

Labor organizations, including the AFL-CIO, the American Federation of School Administrators, AFSME, UNITE!, the United Steelworkers of America, and more

...Pickering was so incensed about the length of the sentence that he telephoned a friend at the department's headquarters in Washington, and demanded in a sealed order that Attorney General Janet Reno review the case. According to a Justice Department memo obtained by The Washington Post, he also threatened to overturn the jury's verdict even though he agreed it was lawful.

Pickering's pressure on the government in the case -- highly unusual for a federal judge -- has sown controversy over his nomination by President Bush to the U.S. Court of Appeals for the 5th Circuit...

It's suspicious that he appointed Pickering the day after Martin Luther King Jr's birthday. Congress has been in recess for a long while now -- he's had plenty of time to make appointments. Odd timing. A cynic might conclude that someone was trying to send a message to the neo-confederate segment of Republican voters...

A group financed by a major Republican contributor has begun running radio ads in about a dozen cities, many in battleground states, attacking Sen. John F. Kerry as "rich, white and wishy-washy" and mocking his wife for boasting of her African roots.

The D.C.-based group, People of Color United, has substantial financial backing from J. Patrick Rooney, the former chairman of Golden Rule Insurance Co. and the founder of a new firm, Medical Savings Insurance Co. Both firms specialize in medical savings accounts, created by Republican-backed 1996 legislation, and health savings accounts, which were created by President Bush's 2003 Medicare prescription drug legislation.

One of the radio ads addresses Kerry's failure to vote on a bill to extend unemployment benefits for 13 weeks: "It needed 60 votes to pass. Ninety-nine out of 100 senators voted -- Kerry did not! It lost by one vote! Maybe Kerry thought the more of us who are unemployed and hurting, the more likely we would vote Democrat."

Another ad attacks Teresa Heinz Kerry, who, at the Democratic convention last month cited her birth and upbringing in Mozambique and who has described herself as African American. In the radio commercial, the announcer says: "His wife says she's an African American. While technically true, I don't believe a white woman, raised in Africa, surrounded by servants, qualifies."

The Kerry campaign denounced the ads, all of which are being aired on radio stations with largely black audiences. "It's disgusting that the president's political allies are now using race as a political weapon," said Bill Lynch, deputy manager of the Kerry campaign. "First a group of right-wing Swift boat veterans began smearing John Kerry's military service, and now another group has resorted to playing racial politics."

Kerry missed the May 11 vote on unemployment benefits while he was campaigning. Democrats charged that the Republican leadership engineered the vote to make sure the legislation would fail by one vote to embarrass Kerry, and that at least one of the 12 Republican senators who voted yes would have switched had Kerry arrived.

People of Color United is the latest in a rash of nonprofit, tax-exempt groups not affiliated with either party that are trying to influence the outcome of the presidential campaign by pumping hundreds of millions of dollars into television and radio ads. Many of these groups, sanctioned by various sections of the federal tax code, have come from the political left. This new group has largely attracted Republican money.

Campaign watchdog organizations contend that some of these groups are violating the law and should register with the Federal Election Commission as political action committees.

Rooney, who is white, said in an e-mail response to an inquiry from The Washington Post: "I support [the] group because the genuine word from the black community should be heard, not white folks saying for them."

Rooney has put $65,000 of his own money and $475,000 of his company's money into Republican campaigns and causes over the past four years. He gave $30,000 for People of Color United's radio ads that are being aired in Cleveland, Philadelphia, Pittsburgh, Milwaukee, St. Louis, Kansas City and other urban areas with large minority populations.

In all, the group has spent $70,000 to buy air time on black radio stations for ads designed to undermine African American support for the Democratic presidential nominee, according to Virginia Walden-Ford, a Republican advocate of school vouchers who runs People of Color United. She described Rooney as the largest donor, adding that her group has received other "smaller contributions."

Walden-Ford said she was disturbed by conversations with people in the black community who said they plan to vote for the Democratic ticket "because we [African Americans] are Democrats. I think that is a bad way to vote. I want people to be informed."

Rooney, she said, has been an active supporter of her efforts to create a school voucher program in the nation's capital. "Pat is a good friend, an ally in the school choice effort," she said.

Rooney sold Golden Rule to UnitedHealth Group Inc. for a reported $893 million in September 2003, just as Congress moved toward passage of a tax break for health savings accounts that will cost the Treasury $16.5 billion in lost revenue over the first five years. Rooney established Medical Savings Insurance this year. The firm's Web site tells prospective customers: "We offer a low-cost, high deductible major medical insurance policy that pays for those big bills. You pay the small bills, and the insurance company pays the big bills. And, thanks to new federal legislation, you can pay the small bills with a new Health Savings Account tax-free!"

After the 2003 passage of the Medicare bill, the Democratic National Committee released a report headlined "Bush's Medicare Bill Provided Major Payoff to Golden Rule." It charged that "in their 10 year campaign to promote the accounts, Rooney's family, companies and employees have given $3.6 million to political candidates and committees, with 90 percent going to Republicans."

Rooney disputed that there is a financial motivation behind his support for the People of Color United radio ads.

"I have a long history of involvement with and support of the black community," Rooney said. "For 21 years I have gone to an all-black church. They finally elected me over other black people to their church board. I'm one of them. I don't know what it has to do with health savings accounts."